Have you ever wondered what will happen to your Facebook account or your Shutterfly photo album when you die? Perhaps you wrote a masterpiece novel that is saved in your Gmail account. Can your loved ones access it or will it be lost forever after you pass away? The current laws in the US are vague. As our society becomes more and more reliant on Internet and “cloud-based” services, the legal questions related to privacy issues and access to digital accounts continue to grow.
In late January, the Uniform Law Commission, a national group of lawyers appointed by state governments to research and draft uniform state laws, proposed creating a committee to study issues related digital assets. The major goal is to figure out the best practice for ensuring your successors can access your digital accounts after you die.
Current US Legislation
At this point, only five states have passed laws that address these issues. Rhode Island and Connecticut are limited in scope to email accounts. Indiana’s statute allows access to “electronically stored documents of the deceased.” Oklahoma passed legislation in 2010 to cover a broad range of digital assets. And in 2011 Idaho passed legislation based on Oklahoma’s 2010 bill. You can access the text of each statute here.
Recently, the Wall Street Journal released a story about the difficulties family and friends are having as they are trying to manage the Facebook, Twitter and email accounts of deceased loved ones. The story also details how state lawmakers are tackling issues related to management of digital accounts of the deceased, and what legal authority should extend to fiduciaries.
In a 2005 case, the family member of a US Marine killed in Iraq went to court after being denied access to his Yahoo email account. Yahoo argued that it was unable to release “private” information and that the account was non-transferable according to the terms of service for the email account.
Overcoming Policies and Passwords
In addition to state legislation, each Internet service, such as Facebook, Google, Twitter, etc., has its own terms of service and privacy policy that may authorize or restrict access to a deceased user’s account. These policies govern your relationship with and use of each Internet service. Many of the privacy policies restrict access to any user except the account holder, and the terms of service restrict the transferability of the account. To overcome this, you’ll need to make sure you grant explicit authority to your fiduciary to access your accounts in order to overcome the privacy concerns associated with each of your digital accounts.
Another hurdle is passwords. There are a number of ways people protect their digital accounts. Passwords can be encrypted, and Internet service providers are increasingly reluctant to release personal password information to anyone but the creator of the account. In addition, even when a deceased person leaves behind their passwords in their estate plan, there are unanswered legal issues about whether or not those passwords can be used. Again, in order to overcome these issues you should ensure that you are explicit in authorizing your fiduciary access to your digital accounts.
How can you ensure your friends and family can legally access your accounts after you die? There’s no magic trick here. You can seek an online service to assist, create a spreadsheet detailing your accounts and access to each, or provide for access in your estate planning documents. While this area of law is all relatively unchartered territory and the challenges have been rare, the unknown legal issues surrounding digital assets are continuing to grow.
Potentially Valuable Digital Property
Beyond social media and email accounts, the issue of digital estate planning extends to online banking, electronic documents, and all other issues related to things people do electronically. It’s important that you disclose your digital assets to your estate planning attorney in order to develop an estate plan that ensures your fiduciaries can access your digital accounts. One simple way to do this is to specify in your will what you want done with all of your digital property. Otherwise, you risk losing any digital property you possess, some of which may be very valuable.
If you’re interested in updating your estate plan or you have questions related to your digital assets, please contact us or subscribe to our confidential (and free) Q & A service.
